HISTORY ON TRIAL: A STUDY OF THE SALEM COMMONAGE LAND CLAIM A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy By GJW Bezuidenhout (G06B2242) Supervisor: Professor Gary Baines Department: History ABSTRACT This thesis critically examines the Salem commonage claim, a dispute that has shaken the hamlet of Salem to its core. On ground level it has caused racialized fault lines to reopen, while suspicion and distrust has also grown between the black Africans of the area as well. On a national level, the Constitutional Court judgement has potentially set a precedent with regards to its jurisprudential approach in determining the validity of land claims in South Africa. Its interpretation of the law was determined by the restorative justice jurisprudence enshrined in the Restitution of Land Rights Act 22 of 1994 (the Act). It based its own understanding of the history of the commonage on this jurisprudence. In a bold step towards realising the aims and purposes of the Act, the Constitutional Court found that both the black African claimants as well as the white landowners have equal rights to the land. One of the reasons why the decision of the Constitutional Court is ground-breaking is that the dispute involves a former commonage – land used for common purpose. The Constitutional Court emphasised that the Act was an “extraordinary piece of legislation” and had to be interpreted in such a way so as to address the injustices of the past. This included provisions of the Act which dealt with how oral testimonies from claimants would be dealt with. Another interesting feature was the heavy reliance by all parties on expert witnesses in the persons of eminent historians, Professors Martin Legassick and Herman Giliomee. This case gave much-needed clarification as to what the appropriate role of an expert historian witness may be in a land claim. The success or failure of land claims often depend on the weight of the evidence supplied by the expert historian witness. But the historian must also take cognisance of the fact that the evidence s/he gives is appropriate according to the scope of law. This case also dismisses the assumption that colonial instruments of land assignation are beyond reproach. These instruments which grant rights to land may also be scrutinised in a court of law, just like when oral testimony is tested for its credibility. This is important to note, especially when balancing land rights of the claimants against those of the landowners. This thesis agrees with the decision taken by the Constitutional Court in this instance. However, it also cautions that such softly-softly approaches may appear as a suitable compromise on paper, but the feeling on the ground may not be as receptive to reconciliation as what the courts would have hoped for. To the jurist, this judgement accurately encapsulates the purpose and aims of the Act. However, such a judgement may not seem satisfactory to the people of Salem. The decisions of the Salem commonage case are sure to inform the discourse of land claims in South Africa. PREFACE This thesis has taken me three years to complete, but in reality it is the culmination of almost six years of postgraduate studying at Rhodes. During this time I have met many people who have come to influence me in some way or another. It is a pleasure to thank those people. Firstly, the financial assistance from the Oppenheimer Trust as well as Rhodes University, through the tireless and selfless work of the Postgraduate Funding Office (most notably John Gillam and Nichole de Vos) is gratefully acknowledged. Their efforts to obtain finance for this research can never be overstated. I also wish to thank the staff of the Cape Archives and the Cory Library for Historical Research, as well as the Rhodes University Library. Their assistance and overall efficiency were remarkable. In particular, I would like to thank Sandy Shell who I met when I was just starting with this research. She not only encouraged me with kind words and advice all the way from Cape Town but also obtained and sent documents from the archives which I had overlooked. I am so grateful to consider her a friend. The Rhodes History Department has truly been my academic home for these last few years. I wish to firstly thank Prof Ennocent Msindo who invited me along to meet his neighbour, who had a vested interest in the case. The interview that followed convinced me that this had the potential of being research of value. Dr Nicole Ulrich had been part of my thesis journey since my Masters and she has always been a calming influence to me. I have also been fortunate enough to have my office situated across the corridor from the oracle that is Prof Helena Pohlandt-McCormick. Her unwavering enthusiasm to the discipline is contagious and necessary, especially on days when my research feels like it needs to be put out of its misery. Her hard-hitting questions and passion for justice have caused me to look at my research in a completely different light. I also wish to thank in particular, Dr Janeke Thumbran, a brilliant academic who has given me sound advice with regards to PhD writing. She has been my office neighbour for the past two years but it feels like it has been much longer than that. I am privileged to be able to call her my friend. The Department has been blessed to have a succession of fantastic administrators this past year. Firstly, I want to thank Ms Annidene Davis for her warm smile and invitation for me to abuse the departmental coffee pot and leftover cake when she saw I was down. When she left at the beginning of this year, I thought that the Department may be in trouble, but we were blessed with two fantastic administrators. First, Ms Thabisa Twani, who had a short but positive influence on the Department and secondly, Mrs Xolisa Nontyi, who has been appointed as the permanent administrator. Both not only carried on the tradition of letting me devour the leftover cake but also were such a pleasure to work with. To Mam’ Cynthia, “Enkosi kakhulu, uMama”. I would also like to thank my friend and mentor, Prof Alan Kirkaldy. He has always been in my corner since my undergraduate days and I truly admire him not only as an academic but also as a human being. As Head of Department he has also worked closely with Postgraduate Funding and the Research Department to secure funding for me for this last year. I am eternally grateful to him for believing in me as much as he did. Speaking of belief, I could not have dreamed of pursuing my postgraduate studies further had it not been for Prof Gary Baines. He has been my supervisor since my Masters, believing in me five years ago and not wavering in that belief since then. He has mentored me in my academic writing as well as playing a key role in my evolution as an academic. He would dutifully question my train of thought and sometimes gleefully so. However, more importantly, he was always available to listen and have a chat. I view him as more than a mentor who has imparted some of his knowledge to me. I see him as my academic father and words cannot truly express my gratitude for what he did for me. I would like to thank my friends for their continued support and willingness to indulge my sessions where I tend to think out loud and seek a response. Thank you to Dr Craig Paterson, Calvin Jordan and Tarryn Gillit whose soothing words saved me from numerous cataclysmic meltdowns. To all my other friends who I neglected during my five-year long self-imposed exile, I humbly ask your forgiveness but also extend my gratitude for understanding and still sticking it out with me. Thesis writing is not only a process but also a space of solitude. There is no one who can truly understand your work as much as you do. Not many people understand this and as a result those closest to you often get frustrated. However, I have been in the most fortunate position to have met someone who not only understood but wholeheartedly encouraged me during the writing phase of my thesis. Rowena Ebel was that person. She was my guiding light to the finishing line and for that I am forever grateful. I am also indebted to all the interviewees (listed in the Bibliography) who gave their time to talk to me, especially taking into account the sensitivity of this case. In particular, I would like to thank Dave Mullins, Advocate Sive Notshe and Professor Hermann Giliomee. Without their enthusiasm it would have been close to impossible to gain access to the information which I needed for this thesis. Finally, I would like to thank my family for their support, encouragement and endless love. My maternal grandmother, Ouma Lala, constantly asks me on my progress, while my paternal grandfather, Oupa Calvyn, routinely sends me messages of encouragement. I am truly privileged to have them in my life. My brother Dawie supported me in his own brotherly way. My parents, Johan and Marietjie, are the two main reasons why I managed to complete this thesis. Their weekly “progress reports” and discussions around the dinner table and their general encouragement was absolutely priceless. They provided me with more love and support than I deserve. I dedicate this thesis to each one of you. CONTENTS: ABSTRACT PREFACE CHAPTER ONE – INTRODUCTION 6 - Locating Salem 6 - An “Extraordinary Application” 17 - From Legal to Frontier History: A Brief Historiography 23 - Methodology 31 - Scope of Study 34 CHAPTER TWO – THE PLACE BETWEEN THE QHORA AND TYELERA RIVERS: AMAXHOSA AND EUROPEAN SETTLEMENT IN THE ZUURVELD 36 - The